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Wednesday, December 1, 2021

Child Marriage and related laws in Bharat – Part 1

Child marriage is a favourite subject for activists who like to label Bharat as misogynistic, regressive, backward, and patriarchal. Generally, the Hindu society is singled out for such labels while the minority faiths are kept out of the purview.

These activists who work overtime to brand Bharat as a hell hole for women would never tell us that child marriage also plagues the United States. Details on the problem of Child Marriage in the United States will be covered in a later part of this series. The second part of this series will discuss the conflict between the Prohibition of Child Marriage Act (PCMA), 2006, and various Personal Laws and how PCMA has not served the purpose it was meant to serve.

This part gives an overview on inconsistencies across laws and describes the provisions of the Prohibition of Child Marriage Act (PCMA), 2006.

International covenants like the Convention on the Elimination of all forms of Discrimination against Woman (CEDAW) and the Convention of the Rights of the child (CRC) mandate that nations must eradicate child marriage and other forms of child abuse including violence and neglect. In most cases, child marriage is forced. For girls, it is the beginning of unprotected sexual activity which can have serious health consequences.

The Child Marriage Act of 1929 was intended as a measure for preventing child marriage. In operation for decades, this ineffective law was replaced with the Prohibition of Child Marriage Act in 2006. There are however numerous Personal Laws in operation which cover the subject of marriage. Having a multitude of Personal Laws makes it complicated to tackle Bharat’s child-marriage problem.

The Different definitions of a Child under Various Laws and Acts:

Even the basics have not been sorted out, and after 7 decades of Independence, no attempt has been made to bring in conformity among the different laws for creating a uniform and standard definition for who can be categorized as a child.

The different cut-off ages used for defining children under different laws are as follows:  

Name of Law                                                                                                      Cut-off age for defining child  
Indian Majority Act, 1875               18 for boys and girls  
Child Marriage Restraint Act, 1929 21 for boys, 18 for girls
Muslim Personal Law (Shariat) Application Act 1937   Puberty or age 15 allowed for marriage
Hindu Marriage Act, 1955 21 for boys, 18 for girls  
Immoral Traffic Act, 1986             16 for boys and girls  
Juvenile Justice Act, 2000 18 for boys and girls  
Prohibition of Child Marriage Act, 2006 21 for boys and 18 for girls
Prevention of Children from Sexual Offences Act, 2012 18 for boys and girls  
Indian Penal Code           No definition of child  

A standard definition of child that applies to all laws is needed.

There are other discrepancies in the laws. For example, under Sections 5 and 11 of the Hindu Marriage Act, the court cannot suo moto declare a marriage of underage persons as void.

Similarly, the Indian Penal Code (IPC) Section 375 specifies two different consent ages for married and unmarried girls–the age of consent for an unmarried girl is 16 years but for a married girl it is deemed to be 15 years and therefore the husband cannot be charged with marital rape unless the wife is below 15 years.

Such inconsistencies need to go–many countries of the developed world–New Zealand, Australia, and UK have abolished the marital rape exception to child-marriage prohibition laws.

Prohibition of Child Marriage Act (PMCA), 2006

Since the Child Marriage Restraint Act (CMA) of 1929 did not authorize prosecution and prevention of child marriages, a revamped law called the Prohibition of Child Marriage Act (PMCA), 2006, was enacted which allows for an underage person to petition to void his/her marriage within two years prior to attaining adulthood i.e., a woman has to petition before she turns 20 and the man before he turns 23.

Punishment for contracting such a marriage can be imprisonment of up to 2 years and/or a fine of Rs 1 lakh. Abetting, performing, conducting, and solemnizing such a marriage is considered a cognizable and non-bailable offence and those punishable include: the groom if over 18, guardian, and others who permit / fail to stop/ conduct/ direct/ perform such a marriage.

Under this Act, each state government must appoint Child Marriage Prohibition Officers to prevent and prosecute solemnization of such marriages. The District Magistrate is empowered to do this using appropriate measures and minimum police force.

Lacunae in PCMA and related laws and recommended corrections:

  • PCMA does not automatically invalidate a marriage even for children who have been married off at very young ages and petitions and complaints need to be filed. The recommendation is that any marriage solemnized after the introduction of the PCMA should be considered invalid ab initio.
  • Marital rape in underage marriage of the girl is also not considered a crime suo moto, but has to be dealt with only through a complaint. Applying IPC Section 375 makes it a criminal act to have sex with someone below 15 years. Suo moto recognition of the crime is essential and all cases where the girl is below 18 must be covered. Laws relating to age of marriage and minimum age of giving sexual consent should be amended so that all such laws are in conformity with one another
  • Even the severity of punishment for marital rape varies even within PCMA. If a wife is below 15 years, then the husband can be charged with rape but severity of punishment is much higher if the wife is below 12 years and not so severe if she is between 12 and 15 years. Severity of punishment for all cases of marital rape should be uniform.
  • As mentioned, a uniform definition of child in all legislations is essential.

(To be continued….)

References:

https://lawcommissionofindia.nic.in/reports/report205.pdf

https://blog.ipleaders.in/laws-child-marriage-india/


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Anuradha
Writer, Editor, Researcher

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